CONSULTATION
Policy and purpose
133. Consultations are now an established part of
the policy making process and have been widely welcomed as a means
of promoting public engagement in the political process and in
producing more informed and better policy. The Cabinet Office's
Consultation Guidance provides a useful indication of a
whole range of methods that can be employed, including e-consultations,
citizens' juries, focus groups and practitioner panels.[256]
The accompanying Code of Practice sets out the principles of good
consultation and the standards for practical implementation, although
it is quite short and high level in nature.[257]
134. None of the evidence we received questioned
the general principle of public engagement on policy development
and the usefulness of public consultations. Not surprisingly,
Government witnesses were equally convinced of the value of public
consultations. The Secretary of State for Trade and Industry,
Alistair Darling, described public consultations as "useful,
quite simply because in a number of cases the Government does
not know the answer" and because they can allow the Government
to test the extent of public support for a particular course of
action.[258] Professor
Wiles emphasised the importance of public consultation in testing
working assumptions, describing the dialogue as "one of the
checks against the evidence base you are using". Professor
Sir Gordon Conway agreed, stressing that each consultation usually
produced some new information or alternative perspective.[259]
Notwithstanding the general support for public consultations,
which we endorse, the evidence we received included a number of
concerns about their conduct and influence in the policy making
process.
135. The guidelines on consultations stress the importance
of clarifying the purposes of consultation at the outset and identifying
the stakeholders at which it is aimed. We agree that it is essential
to ensure that there is a distinction made between consultation
with the public, in order to take account of public opinion, and
consultation with experts or the scientific community, in order
to obtain technical advice or feedback. The Institute for the
Study of Science, Technology and Innovation (ISSTI) highlights
the difficulties involved in reaching a consensus when lay members
are involved in policy making, even when they are briefed on technical
issues and the policy choices available.[260]
It is unlikely that the same questions are apposite for experts
and lay people alike. This point is not specifically addressed
in the Cabinet Office guidelines, although different approaches
to consultations are listed. In practice, the distinction is not
always made. For example, the Government's consultation on the
review of the Human Fertilisation and Embryology Act 1990 did
not specify from whom responses were sought, nor indicate the
issues on which a medical/scientific input was particularly important
to policy formulation. We specifically asked the FSA about the
purpose of consultation. In response, it referred to putting engagement
with the public and other stakeholders at the core of its approach.
More substantively, it uses public engagement in order to "understand
different appetites for risk of citizens in order to communicate
what a complex technical risk means in terms of practical action".[261]
This is an example of the two-way process by which consultation
informs the development of a communication strategy, not just
a policy. Also, there may be times when a consultation is primarily
an exercise in getting a message across to the public or a particular
community, rather than seeking opinions. Whatever the rationale
for the consultation, clarity of purpose is essential from the
start, not least in order to manage the expectations of contributors.
136. We are also concerned about the extent to which
public consultation exercises in which comments are invited on
draft proposals are used as an indicator of public opinion. Respondents
to such exercises are self-selecting. Well-organised campaigns
by pressure groups can easily give a misleading impression of
the weight of public opinion. For example, the results of DEFRA's
recent consultation on badger culling were reported as indicating
that 96% of some 47,000 responses were against a cull. However,
some 68% of these responses were from organised campaigns. Opinion
was in fact quite evenly divided among responses from interested
organisations and substantive responses from the public.[262]
If public opinion is an important determinant of a particular
policy an independently conducted opinion poll might represent
a more scientific and informative approach. Professional polling
organisations are better at asking the right questions than civil
servants. We were concerned to hear the Minister for Public Health,
Caroline Flint MP, drawing lessons about public opinion from the
consultation on the Human Fertilisation and Embryology Act 1990,
given that the report on the consultation explicitly stated that
the responses were self-selecting and therefore could not be said
to be representative.[263]
After an oral evidence session with the Minister on the subject,
we learnt very little about which policies were strongly influenced
by public opinion and those on which the Government had firm views.
In our opinion, and following our predecessor Committee's lengthy
inquiry on this subject in 2004-05, which included an e-consultation,
this was one consultation that added very little to the process
of policy making.
Feedback
137. The provision of feedback to contributors is
also essential to the maintenance of public confidence in the
consultation process. The Cabinet Office guidance on consultation
emphasises the need to provide participants with feedback on how
their input has been used to inform policy development. This is
particularly important when key stakeholders are involved. There
was a strong message from stakeholders with interests in the ID
cards programme that they were unaware of how their views were
contributing to policy development. We will look to see how the
Home Office fulfils its commitment to improve on this.[264]
The Institute for the Study of Science, Technology and Innovation
told us: "we would warn of the dangers of raising expectations
about public engagement without subsequent feedback and the consequent
'consultation fatigue' and disenchantment that this can engender".[265]
The Secretary of State for Trade and Industry acknowledged the
point about raising expectations but thought that there were many
occasions when consultation is "highly desirable".[266]
Cancer Research UK commented that "the process of policy
development is still not transparent, the results of consultations,
although published, often do not bear much resemblance to the
final policy", citing the examples of the development of
the Human Tissue Act 2004 and the implementation of legislation
for the European Clinical Trials Directive.[267]
138. On the positive side, the Royal Society of Chemistry
praised the Environment Agency's practice of producing "a
response document which outlines all the comments made and their
response, including arguments as to why some comments are being
rejected".[268]
Other witnesses called for all departments to adopt this practice
and an examination of recent consultations reveals that many departments
frequently do so. There are also examples where feedback has been
negligible or vague. We recognise the practical difficulties and
resource implications involved in the provision of feedback but
we believe that it is a valuable exercise in maintaining engagement
and confidence. We recommend
that, as a matter of good practice, each policy statement or legislative
proposal which follows a public consultation make explicit reference
to how the consultation influenced the policy, including an explanation,
where necessary, as to why any views or proposals widely supported
by contributors were rejected.
A cause of delay
139. There can also be a temptation to use public
consultation as an excuse for delaying or avoiding difficult decisions.
Professor Grimston, Associate Fellow at Chatham House, told us:
"There is an urgent need, then, to reintegrate sensible science
into decision-making. The political establishment must recognise
that some problems simply cannot be discussed away and that a
strong lead will be needed even if society is not quite ready
for strong leadership" [269]
The Institute for the Study of Science, Technology and Innovation
also commented that "dialogue should not become a delaying
tactic or a substitute for clear decision-making by government
departments".[270]
In 2003, the Government's Energy Review was widely criticised
for avoiding the issue of nuclear power, with ministers insisting
that a further consultation would be necessary before any decisions
could be taken. We have referred above to the limited usefulness
of the Department of Health's consultation on the Human Fertilisation
and Embryology Act. This consultation closed in November 2005
and nothing has emerged from it one year later, even though the
Minister told us in oral evidence in July 2006 that she would
make some announcements over the summer.[271]
Such inactivity can only promote scepticism in consultations and
perhaps threaten future public participation.
140. Public consultations are often valuable and
certainly good practice, but should not be viewed as always essential.
There are policy areas in which the options are reasonably clear,
the arguments have been well rehearsed in public, and both scientific
views and public opinion are well documented. In these situations
the Government should be prepared to bring forward legislation,
in draft, for Parliament to consider. Whilst
we accept that there can be legislative and political uncertainties
which affect the policy making process, we recommend that public
consultations generally be accompanied by an indicative timescale
of resulting decisions.
Timing
141. The scope and timing of any consultation is
also important. One complaint that we heard was that the 12 week
minimum period for consultations to run is not always adhered
to. The Science Council noted that "Government has an unfortunate
tendency to work to very tight time scales when consulting on
key issues and policy area" and that "Consultations
undertaken at speed have a tendency to play to campaigning groups
and others whose opinions and views may already be well formed
but not underpinned by the evidence".[272]
Professor Wiles acknowledged the problem and spoke of the disconnection
between the civil service and academic years: "I think it
is literally a lack of understanding of the different timetables
of different types of jobs. That is no excuse; we need to get
it right".[273]
The Cabinet Office collects statistics on compliance with this
aspect of the code. It set a target of 75% of consultations exceeding
12 weeks by 2004-05. This target has been met: the figure achieved
was 77% in 2004 and 80% in 2005. Non-compliance requires ministerial
consent, but this was not obtained in 20 cases in 2005.[274]
From 2005, departments are expected to state in their annual reports
the reasons for any failure to obtain ministerial sign off to
a breach of the code.[275]
We accept that there may be good reasons for accelerating the
consultation process in breach of the 12 week minimum—there
may be legislative pressures either in Europe or Westminster—but
a failure of compliance on this count in around one fifth of consultations
represents quite a high proportion. We agree with Professor Wiles
that more needs to be done here and refer in paragraph 145 below
to improvements in the monitoring process.
142. In our case study on ID cards, we found that
confidence in the scheme amongst stakeholders had been affected
by the perceived lack of clarity and limited scope of the consultations.
Witnesses claimed that the consultations had been pitched at the
wrong level: they had focussed on how an ID card could work rather
than on what technologies could be used to deliver the desired
objectives.[276] Although
the Government Response did not accept the Committee's findings,
it did note that industry will have further opportunities to fully
engage with the project team during procurement and we encourage
the Identity and Passport Service to use these opportunities to
improve confidence in the scheme. This example illustrates the
benefits of early engagement with experts on the terms of the
consultation itself. This point was reinforced by Dr Wallace from
the Biosciences Federation, who told us that such early engagement
did happen but "not often enough".[277]
Guidelines stress the importance of consultations being carried
out early enough for the results to have a real impact on the
policy making process, and the Cabinet Office does disseminate
good practice, for example on early engagement, in its annual
report on consultations.[278]
One good example of this is the Government's engagement activities
on nanotechnology. Having had the need for early public engagement
flagged up, partly by Government-sponsored work, shortly after
nanotechnology began to attract considerable public attention,
the DTI has funded a series of innovative public engagement activities
and research into public attitudes, largely under the Sciencewise
programme.[279] A Nanotechnology
Engagement Group was established to co-ordinate these activities
and disseminate best practice more widely.[280]
This welcome approach should help avoid widespread public misunderstanding
and promote a more rational and less bipolar debate than has sometimes
been evident, for example that on GM crops. There are certainly
examples of good practice on which to draw, but our concern is
that too often departments are not following them. The Cabinet
Office may keep limited statistics on compliance but the most
effective drivers for good performance on consultations must come
from within departments themselves.
Perceptions of bias
143. More serious concerns arise when the consultation
appears to be couched in terms which are perceived to indicate
a bias on the part of the Government towards a particular outcome.
Of course, on occasions when the Government does have a preference
for a policy and is seeking views upon it, this should be explicitly
stated and the grounds for movement clearly spelt out. But an
unstated bias, whether perceived or real, can undermine any subsequent
policy. The 2006 Energy Review was undermined in many eyes by
a perception that a decision on nuclear power had already been
reached. The DEFRA consultation on bovine TB in cattle was widely
criticised in evidence to the departmental select committee on
the grounds that the consultation document did not present an
accurate view of the scientific evidence, as presented by the
Independent Scientific Group which was established by DEFRA to
oversee the trials of badger culling.[281]
The way the consultation document was framed prompted stakeholders
to raise "serious questions over DEFRA's ability to use sound
science when planning policy developments".[282]
The Royal Society of Chemistry was sceptical of Government's general
approach to consultation and warned: "the scientific community
wants a process of consultation and not ratification".[283]
We recommend
that scientific advice be routinely used in drawing up the terms
of consultations, in order to ensure the right questions are asked
and to avoid any subsequent criticism of its terms.
Conclusions
144. We recognise and welcome the efforts that have
been made to improve the transparency of scientific advice to
Government in the wake of a number of high profile episodes which
served to undermine public confidence. There is still further
to go. In line with the approach adopted by the current Government
CSA, we have advocated a more high profile, public face for departmental
CSAs, both in giving advice and policing best practice on transparency
within departments.
145. Consultations have a very useful role to play
in improving not only transparency but the quality of policy making.
We welcome the steps that the Government has taken to ensure that
they are a now a vital part of the process. Nonetheless, it is
important to guard against consultation fatigue and growing doubts
surrounding the link between consultation and the content of policy.
In some circumstances an approach of continuous dialogue rather
than periodic consultation might be more profitable, as outlined
in a recent report from the Council for Science and Technology.[284]
Early engagement with the right stakeholders may be more important
on occasion than full-blooded public consultation. Systematic
monitoring is required to ensure that standards are being met
and goals are being achieved. At present the Cabinet Office produces
a very short report, indicating compliance with the 12 week timeframe
and citing a few examples of best practice. We suspect that this
report is not widely read in the civil service and is not an effective
tool for managing performance. We do not propose that a raft of
bureaucratic measures is drawn up but we believe there is scope
for a closer analysis of performance. We hope that other select
committees will play their part and scrutinise this aspect of
departmental activity. We
recommend that the Cabinet Office monitor whether departments
are following best practice on consultations and act where repeated
breaches of the code of practice for consultations occur.
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